Powers v Hall [2013] NSWSC 1356

Powers v Hall [2013] NSWSC 1356

Application for restraint of sale is dismissed because, even on defendant's best case, a substantial amount remains justly due to plaintiffs, power of sale has arisen, and balance of convenience—including risk to value of properties and speculative refinancing proposal—does not warrant restraint.

Jurisdiction
Australia
Judgment Date
13 September 2013
Procedural Posture
Notice of Motion in Common Law Proceedings / Interlocutory Application; Hearing Before Duty Judge
Outcome
Application to restrain sale by auction dismissed.
Legal Topics
['default Judgment' 'power of Sale' 'contracts Review Act 1980' 'interlocutory Injunction']
['property Law' 'contracts'] ['default Judgment' 'power of Sale' 'contracts Review Act 1980' 'interlocutory Injunction']

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Procedural Posture

Notice of Motion in Common Law Proceedings / Interlocutory Application; Hearing Before Duty Judge

Legal Issues

  1. 1 ['Whether to grant interlocutory injunction restraining auction of property pursuant to default judgment' 'Whether defendant has an arguable claim under Contracts Review Act 1980 sufficient to restrain sale']

Ratio Decidendi

Application for restraint of sale is dismissed because, even on defendant's best case, a substantial amount remains justly due to plaintiffs, power of sale has arisen, and balance of convenience—including risk to value of properties and speculative refinancing proposal—does not warrant restraint.

Court Disposition

Application to restrain sale by auction dismissed.

Orders

  • ["Application for relief in the form of order or prayer 5 of the defendant's Notice of Motion is dismissed." 'Until further order, order 2 made on 13 May 2013 be stayed.' "Balance of the Notice of Motion stood over to Registrar's list on 27 September 2013 at 9.00am." "Defendant to pay plaintiffs' costs."]